Articles Posted in Defenses

Because of the current politics surrounding sexual assaults in the military, some are wondering what they can do in advance to avoid a later false claim of sexual assault.  This has lead to a suggestion that the interactions should be video recorded, the idea being that the recording will later be evidence to defend against a false report.

Well, that doesn’t take care of the issue about the potential crime involved.  If the recording is done with knowledge and consent, that probably is defensible.  But what if it isn’t.  Many states now have statutes prohibiting unknowing or nonconsensual recordings.  As does the federal government in 18 U.S.C. 2251(a).  Now what.

See United States v. Palomino-Coronado, a decision of the Fourth.

Some years ago I represented a Soldier accused of multiple assaults and rapes of his wife, and of his girlfriends.  The rapes allegedly included him choking the complaining witness during the rapes.

He told me – and later the members at his court-martial – that he and his wife consensually engaged in choking during sex as part of rough sex because she liked it.  At the time I was already aware of autoerotic behavior, so this didn’t seem too off-the-wall to me as a potential defense.  Almost all forensic pathology and death investigations texts have a section on the deadly act of autoeroticism.  So I researched “choking during sex” and came across quite a bit of research and current research about the “choking game,” and  “erotic asphyxiation.”  There is confusion over application ofthe term and the scope of the behavior.  There is even a website that describes why, in the writer’s view, women like to be choked during sex, and how to do it properly.  Like autoeroticism, the choking game can be deadly or cause serious harm.

Since that case I have had a number of cases where the complaining witness alleges she was choked while being raped, and I have investigated that as a possible defense.  I have several appeals now where this issue is clearly presented.  But in each of these appellate cases the defense counsel ignored or pooh-pooed the idea that the client was telling the truth about rough sex involving choking and so may have missed a potentially valid defense.

Reports regarding an Irish court-martial and litigation involving Lariam are most interesting.  Partly because of a case pending decision in the United States Court of Appeals for the Armed Forces.

The Irish Times reports that:

Taoiseach Enda Kenny has defended the Army’s continued use of the controversial anti-malaria drug Lariam, five years after the US military which pioneered the drug dropped it in the face of health concerns and legal actions from members of the military.

A lieutenant colonel said because he suffers from kleptomania he should not be court-martialed for shoplifting last year at Fort Benning, Ga.

Lt. Col. Rodney Page, a 28-year Army veteran, admits to stealing $37 worth of challenge coins at the post exchange, but he blames the Army for mistakenly reducing medication he takes to curb his urge to steal.

“That impulse is so strong that it just overrides your common sense,” said Page, 58, recalling the theft. “I am ethical, even though I have this problem. I’ve never taken anything from anyone I know. You can leave money on the table; I’m never going to touch it.”


MiamiHerald.com
An American soldier accused of killing five fellow troops at a counseling center in Iraq had been unraveling for nearly two weeks but the U.S. military lacked clear procedures to monitor him or deal with the deadly shooting spree once it began to unfold, a military report found.

The shooting deaths drew attention to the issues of combat stress and morale as troops have to increasingly serve multiple combat tours because the nation’s volunteer army is stretched thin by two long-running wars.

Key lapses in assistance, care, and observation of troubled soldiers.

United States v. Brasington, ARMY 20060033 (A. Ct. Crim. App. 5 October 2009).

On 10 September 2008, our superior court granted appellant’s petition for grant of review on the following issue:

WHETHER APPELLANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHERE THE TRIAL DEFENSE COUNSEL ALLEGEDLY PROVIDED INCOMPETENT ADVICE REGARDING THE LACK OF THE DEFENSE OF MENTAL RESPONSIBILITY.

September 29, 2009, in Suits & Sentences.

Troops lose challenge to anthrax vaccination

Eight members of the U.S. military who challenged a mandatory anthrax vaccination have lost, again.

Like the phoenix this is an old story that is likely to rise again in light of the proposed DoD flu shot program.  Don’t know about others, but I’ve already been contacted by several pregnant or nursing military personnel who want to refuse the flu vaccine because of concerns about their baby.

Did Iraq veteran’s PTSD spark his shoplifitng charge?  By Julia O’Malley | Anchorage Daily News.

Do you have client accused of shoplifting, a senior officer or senior enlisted perhaps, a really good person who no-one would have imagined as stealing from the Exchange?  Can you explain that?

For some years I have successfully argued from this book (e.g. in a Gen. Off. Art.15, or with the AFBCMR).

Will Cupchik, Why Honest People Shoplift or Commit Crimes of Theft (Revised), Tagami Comms., 2002

Here’s a useful and timely article.
Hafemeister & Stockey on Criminal Responsibility of War Veterans with PTSD

Hafemeister_07Thomas L. Hafemeister (University of Virginia School of Law) and Nicole A. Stockey have posted Last Stand? The Criminal Responsibility of War Veterans Returning from Iraq and Afghanistan W ith Post-Traumatic Stress Disorder (Indiana Law Journal, Forthcoming) on SSRN.  Here is the abstract:

As more psychologically-scarred troops return from combat in Iraq and Afghanistan, society’s focus on and concern for these troops and their psychological disorders has increased. With this increase and with associated studies confirming the validity of the Post-Traumatic Stress Disorder (PTSD) diagnosis and the genuine impact of PTSD on the behavior of war veterans, greater weight may be given to the premise that PTSD is a mental disorder that provides grounds for a “mental status defense,” such as insanity, a lack of mens rea, or self-defense. Although considerable impediments remain, given the current political climate, Iraq and Afghanistan War veterans are in a better position to succeed in these defenses than Vietnam War veterans were a generation ago. This Article explores the prevalence and impact of PTSD, particularly in war veterans, the relevance of this disorder to the criminal justice system, and the likely evolution of related mental status defenses as Iraq and Afghanistan War veterans return from combat.

/tip CrimProfBlog

I have previously commented about evidence of the victim’s character for violence and specific incidents.  To refresh – there are several ways the assault victim’s character for violent behavior can become relevant and admissible in an assault case.

a.  The defense puts on opinion testimony about the victim’s violent, threatening, or assaultive non-peaceful character, as part of a self-defense case.

b.  The prosecution puts on opinion testimony of the victim’s character for peacefulness.

c.  The defense cross-examines a prosecution witness to peacefulness with specific instances of violent behavior to test the witness’s opinion.

d.  And as the case below points out, the accused can testify about specific incidents if known to him, and if reasonably close in time or over a lengthy period of time.

Eighth Circuit Considers Admissibility Of Victim’s Prior Threats, Character And Reputation Evidence

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In assault with a dangerous weapon prosecution, trial court correctly excluded defendant’s evidence of prior threats made by his victims against others, despite defendant’s self-defense claim, because the defendant failed to show he had personal knowledge of the remote, prior threat, so that it might show the defendant’s state of mind in shooting at victim under FRE 405(b), in United States v. Bordeaux, __ F.3d __ (8th Cir. July 7, 2009) (No. 08-2280).

/tip FederalEvidenceBlog.